Disorderly Conduct

Why Republicans and Democrats can’t even agree on their own rules for disagreeing about the budget.

Senate Minority Leader Mitch McConnell (center) arrives for the weekly Republican policy luncheon at the U.S. Capitol on April 9, 2013, in Washington.

Photo by Win McNamee/Getty Images

Congress is a mysterious place. Today, for example, the House took up measure H.R. 1071, which will specify the size of the planchets on commemorative coins issued by the Baseball Hall of Fame. Congress has the power to coin money, and this legislation amends the National Baseball Hall of Fame Commemorative Coin Act to specify the diameter of the blanks from which gold and silver coins will be made.

This is just one of the arcane events that happen every day as a part of the congressional pageant. There are many others. Most can be safely ignored. Some of the esoteric inner workings of Congress are important, though, because the rules of the game can determine the outcome. The overuse of the filibuster has fundamentally changed the nature of the Senate, for example. Almost nothing can pass the Senate without 60 votes, as we just witnessed with gun control. Right now there is a procedural fight underway about how the House and Senate should proceed with the budget. How it resolves itself will offer some clues about whether we're headed for another summer of ad hoc budget madness or whether there is hope for a grand bargain.

The debate is about setting up a budget conference, the process by which representatives from each body are to reconcile the House and Senate budgets. That we've even gotten to this point is a victory of sorts. Senate Democrats didn’t offer a budget for four years, so there hasn’t been anything to reconcile in a long time. In the last two years, the government has budgeted by crisis. Using the flawed but irresistible analogy of the family budget, Congress has been deciding how much of which bills to pay off while the repo man and bill collector are at the front door.

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Disorder in the process created an escalating series of confrontations over funding government operations and avoiding breaking through the debt ceiling. The final insult was sequestration—across-the-board budget cuts designed never to go into effect—that are now firmly in effect.

With the new Congress came the promise from both sides that they would return to the orderly way of doing things. We were going to spread out the bills on the kitchen table at the start of the month and be sensible.

Returning to "regular order" wouldn’t make the budget issues any easier to solve, but it did offer the possibility of draining some of the suspicion from both sides. After the supercommittee and the various gangs of senators failed to find any budget solutions, maybe the people who are actually supposed to work out the issues should have a crack at it. “We’ve been in a stalemate for four years,” House Budget chairman Paul Ryan told the National Review. “I’m very critical of the Senate’s budget, but at least they’re doing one. Let’s use this process to go through regular order to get an agreement.” Jeff Sessions, the ranking Republican member on the Senate budget committee, was also a fan of regular order. “Secret deals have not worked and are an affront to popular democracy,” he argued in January. “The right process is the regular order."

Steve Bell, a longtime Senate budget veteran now with the Bipartisan Policy Center, thought it was a good sign after years of budget fishtailing. "When you're a budget person, you're never hopeful, but the fact is that I had a glimmer of what I think was optimism," he says. "I am so unfamiliar with it, it may have been a bad stomach, but it was a glimmer of hope."

The hope was based on the idea that regular order meant that both the House and Senate would follow the Budget Act. Under that act, any budget that goes through regular order is brought up under the rules of reconciliation, which means it would only need a simple majority to pass the Senate. For a grand bargain that would include tax reform and entitlement reform, the regular threshold would be very helpful. As we saw recently with legislation on background checks for gun purchases, it's hard to get 60 votes for ideas that have even 90 percent public approval. "The appointment of conferees by both sides is the hinge that will bring us the chance for tax reform and entitlement reform," says Bell, "Without that, it wouldn't go forward."

The House and Senate have each passed budgets, and now under regular order we are at the point where the leaders of each body are supposed to appoint members to a conference committee to hash out the differences. That's where things have broken down. Republicans don't want to name the conference members. On Tuesday, Sen. Harry Reid tried to force the issue, but he was blocked by Republicans.

Democrats say they want to get going because the faster a budget agreement can be reached, the faster the mindless sequestration cuts can be replaced with a budget that at least prioritizes things. They are also eager to get the long, drawn-out public process of reconciling the House and Senate budget bills started because they think that spectacle will embarrass Republicans. GOP members would be forced to openly defend their position that they will not raise revenues from taxes under any circumstances.

Meanwhile, every day that Republicans don't meet the deadline for appointing members to the conference committee, Democrats can hammer them for not following the regular order that they so long demanded from Democrats.

Republican leaders say they want an agreement on an initial starting point for negotiations before they continue so that when these conference committee members are named, they have a common framework to start from. That has been done before, and it makes sense. There is a lot to be worked out to reconcile these two visions. The House Republican budget is from Mars—trillions more in spending cuts than Democrats propose—and the Democratic Senate budget is from Venus, with a trillion in tax hikes Republicans oppose. "Even if they did name conferees, I just don't see evidence of agreement between the two," says Barry Anderson, formerly of the Office of Management and Budget and the Congressional Budget Office.

House Speaker John Boehner also has another motive for delay. Under the rules, 20 days after the conference committee convenes, Democrats would gain the power to force votes. These votes would likely be designed to embarrass Republicans politically.

Disputes about regular order are, in a sense, a part of regular order. They are part of legislative gamesmanship. But as President Obama tries to work a side deal with Republican senators over a grand bargain, this debate reminds us how mired things still are in Congress.

One of the arguments for doing things according to the rule book was that it would help the economy. The markets and CEOs making bets on the future would see that Washington lawmakers had snapped themselves out of the frenzied rounds of bicker and spit. Consumers, whose confidence dropped as a result of last year’s fiscal cliff negotiations, would also regain their spirits. This summer lawmakers will face another deadline over the fiscal cliff. The hope has been that rational heads, working under regular order, would come up with an agreement that would help everyone avoid another frantic moment at the brink. If this dispute over naming budget conferees is a harbinger of things to come, we're headed back to regular disorder.